General Protections and Unlawful Discrimination: RailPro Services Pty Ltd v Flavel [2015] FCA 504

Published 9 June 2015

The Federal Court has found that it was “glaringly improbable” that an employer was aware that a locomotive driver was suffering from a psychological condition after being informed that he felt violently ill when required to undertake a competency test.

Mr Flavel commenced employment with RailPro Services Pty Ltd (RailPro) in April 2011 as a locomotive driver. Despite having almost 40 years of experience, Mr Flavel was not familiar with the South Australian tracks and routes that RailPro operated and was required, as part of his training, to drive trains under supervision. On 11 October 2011, shortly after 1am, the train that Mr Flavel was observing under the control of a qualified driver collided with another train. No one was injured; however the accident caused approximately $5 million damage.

An investigation found that Mr Flavel and the supervising driver were at fault for the collision. Despite the accident warranting the termination of both employees, they were issued with strong warnings and were required to be assessed for competency before being allowed to drive trains.

On 27 November 2011, Mr Flavel was required to demonstrate his competency in an assessment. Mr Flavel boarded the train and commenced to prepare to drive. He became extremely nervous and felt unwell. He set up his notes and diagram near the driver’s seat but was then told by the assessor that he was not permitted to use the notes. Mr Flavel then told the assessor that he was unwell and was unable to operate the train safely.

Upon arrival at RailPro offices, Mr Flavel explained that he had been feeling sick and could not operate the train. Mr Flavel’s employment was terminated that day for failure to fulfil the inherent requirements of his role. It was not until after the termination of his employment that it was found that Mr Flavel was suffering from post-traumatic stress disorder arising from the train accident.

Mr Flavel commenced proceedings in the Federal Circuit Court claiming that RailPro had taken adverse action against him on the basis of his disability and his exercise of a workplace right to take reasonable care to protect his health and safety at work.

At first instance, the judge found that despite the fact that Mr Flavel’s post-traumatic stress disorder had not been diagnosed at the date of termination, RailPro was aware that Mr Flavel had a physical or psychological condition as he had stated that he felt violently ill. Terminating Mr Flavel’s employment was therefore adverse action due to the exercise of his workplace right to protect his health and amounted to disability discrimination in contravention of the Disability Discrimination Act 1992 (Cth).

The Court ordered RailPro to pay damages of $70,000 for economic loss, $25,000 for distress, hurt and humiliation and a $5,000 penalty to Mr Flavel.

Rail Corp then appealed the decision to the Federal Court.


The Federal Court found that it was “glaringly improbable” that RailPro was aware of Mr Flavel’s physical or psychological condition at the time of termination. The judge stated that it should have been found that:

“in the absence of knowledge of a disability and, more particularly that Mr Flavel’s behaviour at his assessment was a symptom of disability, the decision makers could not be found to have dismissed Mr Flavel because of his disability.”

In relation to the exercise of Mr Flavel’s workplace right, the judge found:

“the finding that he was dismissed because he had exercised a workplace right, being his responsibility… to take reasonable care to protect his health and safety at work and that of others, does not rest on whether he had a disability or on whether the decision makers considered that he had a disability.”

The Federal Court upheld the primary judge’s finding that Mr Flavel had been dismissed because he exercised a workplace right. However, the Court found that the primary judge had calculated Mr Flavel’s economic loss incorrectly as there was a failure to take into account the date on which Mr Flavel would be able to return to work and the fact that he had received workers compensation payments. The Federal Court also substituted an amount of $7,500 for distress, hurt and humiliation, setting aside the primary judge’s award of $25,000.

The Federal Court sent the matter back to the Federal Circuit Court for determination of compensation.

Read the full decision here